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DUKE ENERGY FIELD SERVICES ASSETS v. FEDERAL ENERGY REG. COMM.

July 18, 2001

DUKE ENERGY FIELD SERVICES ASSETS, L.L.C., ET AL., PLAINTIFFS, VS. FEDERAL ENERGY REGULATORY COMMISSION DEFENDANT.


The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

  MEMORANDUM AND ORDER
Now before the Court is the defendant's motion to dismiss, and several non-parties' motions to intervene. The underlying dispute concerns the defendant's issuance of Order 639, an order requiring the plaintiffs, who are merchants of oil services, to disclose the prices charged for their oil services. After a full consideration of the parties' memoranda, the applicable law, and for the following reasons, the Court GRANTS the non-parties' motions to intervene and GRANTS the defendant's motion to dismiss.

I. BACKGROUND

Duke Energy Field Services ("Duke") and El Paso Field Services Co. ("El Paso") own and operate natural gas pipeline facilities in areas covered by the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1301-1356. Several putative intervenors are similarly situated.*fn1 Duke and El Paso often sell the use of their facilities to others in the natural gas business. Section 1334(f)(1) of the OCSLA obligates companies such as Duke and El Paso to provide "open and non-discriminatory access to both owners and non-owner shippers." 43 U.S.C. § 1334(f)(1).
The Federal Energy Regulatory Commission ("FERC") has the delegated authority to monitor Duke and El Paso's compliance with section 1334(f)(1). The FERC determined that, without additional information, it was impossible to know if companies like Duke and El Paso were complying with section 1334(f)(1). Therefore, on April 10, 2000, after a plenary period of notice and comment, the FERC issued Order No. 639.
Order No. 639 requires Duke and El Paso to publicly file the rates charged for their gas transportation services. Notably, the Order only applies to OCSLA covered natural gas pipelines, and does not apply to pipelines regulated by the Natural Gas Act, 15 U.S.C. § 717, et seq. Duke and El Paso seize on this differential applicability and argue that the requirement that they publicly file their rates, while other companies are permitted to keep rates confidential, damages Duke and El Paso's competitive positions in the natural gas shipping market.
Seeking to nullify Order No. 639, Duke and El Paso filed this suit on September 1, 2000. On September 18, 2000, the two companies moved for a preliminary injunction seeking to avoid their first reporting requirement, which was scheduled for October 16, 2000. On October 13, 2000, this Court denied the plaintiff's motion for a preliminary injunction. The Court found that there was no threat of irreparable injury, since FERC regulations permitted public disclosure of any information to be stayed pending further proceedings.
Now before the Court are several motions to intervene and FERC's motion to dismiss. The FERC's chief argument is that Duke and El Paso's complaint must be dismissed because the parties have not complied with 43 U.S.C. § 1349, a provision addressing citizen suits challenging agency actions taken pursuant to OCSLA.

II. ANALYSIS

A. Intervention

Eight parties seek to intervene on behalf of the plaintiffs: The Williams Companies, Dynegy Midstream Services, Chevron U.S.A., Inc., Exxon Mobil Corp., Shell Offshore, Inc., Texaco Exploration and Production, Inc., Amoco Production Co., BP Exploration & Oil, Inc.

Federal Rule of Civil Procedure 24(b) provides that a non-party "may be permitted to intervene" when a non-party's claim or defense and the main action have a "question of law or fact in common." Fed.R.Civ.P. 24(b). "As its name would suggest, permissive intervention is an inherently discretionary enterprise." E.E.O.C. v. National Children's Center, Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998). "In order to litigate a claim on the merits under Rule 24(b)(2), the putative intervenor must ordinarily present: (1) an independent ground for subject matter jurisdiction; (2) a timely motion; and (3) a claim or defense that has a question of law or fact in common with the main action." Id.
The Court finds that the eight non-parties wishing to intervene may do so. Their motions to intervene were all timely filed, and their Rule 24(c) pleadings present issues of law in common with those in the instant case, Civ. A. No. 00-2124. As the parties also allege a violation ...

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